Freedoms of the air

The freedoms of the air are a set of commercial aviation rights granting a country's airlines the privilege to enter and land in another country's airspace, formulated as a result of disagreements over the extent of aviation liberalisation in the Convention on International Civil Aviation of 1944, known as the Chicago Convention. The United States had called for a standardized set of separate air rights to be negotiated between states, but most other countries were concerned that the size of the U.S. airlines would dominate air travel if there were not strict rules. The freedoms of the air are the fundamental building blocks of the international commercial aviation route network. The use of the terms "freedom" and "right" confer entitlement to operate international air services only within the scope of the multilateral and bilateral treaties (air services agreements) that allow them.

The first two freedoms concern the passage of commercial aircraft through foreign airspace and airports, the other freedoms are about carrying people, mail and cargo internationally. The first through fifth freedoms are officially enumerated by international treaties, especially the Chicago Convention. Several other freedoms have been added, and although most are not officially recognised under broadly applicable international treaties they have been agreed to by a number of countries. The lower-numbered freedoms are relatively universal while the higher-numbered ones are rarer and more controversial. Liberal open skies agreements often represent the least restrictive form of air services agreements and may include many if not all freedoms. They are relatively rare but examples include the recent single aviation markets in the European Union and between Australia and New Zealand.

Freedoms of the air apply to commercial aviation.[1][2]:145–146 The terms 'freedom' and 'right' are a shorthand way of referring to the type of international services permitted between two or more countries.[2]:145–146 Even when such services are allowed by countries, airlines may still face restrictions to accessing them by the terms of treaties or for other reasons.[2]:145–146[3]:19

a diagram of the nine freedoms, with blue circles indicating the operating airline's domestic market and red or yellow circles indicating foreign markets

The first and second freedoms grant rights to pass through a country without carrying traffic that originates or terminates there and are known as 'transit rights'.[2]:146 The Chicago Convention drew up a multilateral agreement in which the first two freedoms, known as the International Air Services Transit Agreement (IASTA) or "Two Freedoms Agreement", were open to all signatories. As of mid-2007, the treaty was accepted by 129 countries.[5]

A country granting transit rights may impose fees for the privilege. The reasonableness of such fees has caused controversy at times.

The United States has authority to charge overflight fees over its territory (en route, yellow) and over ocean regions where it has been delegated air traffic control responsibilities by the ICAO (oceanic, blue). The fees are only applicable to overflights; domestic & international flights arriving/departing the US are taxed though landing fees. (Note: Some US island territories lie within the oceanic fee regions, while the en route fee is charged over the Bahamas & Bermuda, where it provides only high-altitude ATC service)

The first freedom is the right to fly over a foreign country without landing.[6]:31 It grants the privilege to fly over the territory of a treaty country without landing. Member states of the International Air Services Transit Agreement grant this freedom (as well as the second freedom) to other member states,[7] subject to the transiting aircraft using designated air routes.[8] As of the summer of 2007, 129 countries were parties to this treaty, including such large ones as the United States of America, India, and Australia. However, Brazil, Russia, Indonesia, and China never joined, and Canada left the treaty in 1988.[9] These large and strategically located non-IASTA-member states prefer to maintain tighter control over foreign airlines' overflight of their airspace, and negotiate transit agreements with other countries on a case-by-case basis.[3]:23 Since the end of the Cold War, first freedom rights are almost completely universal.[2]:151 Most countries require prior notification before an overflight, and may charge substantial fees for the privilege.[10]

IASTA allows each member country to charge foreign airlines "reasonable" fees for using its airports (which is applicable, presumably, only to the second freedom) and "facilities";[8] according to IATA, such fees should not be higher than those charged to domestic airlines engaged in similar international services.[8] Such fees indeed are commonly charged merely for the privilege of the overflight of a country's national territory, when no airport usage is involved.[11] (Although it should be noted that overflights might still be using services of a country's Air Traffic Control Centers). For example, the Federal Aviation Administration of the U.S., an IASTA signatory, charges the so-called en route fees, of $49.95 (US$56.86 beginning 1 October 2014) per 100 nautical miles (190 km), of great circle distance from point of entry of an aircraft into the U.S.-controlled airspace to the point of its exit from this airspace.[12] In addition, a lower fee—the oceanic fee—is charged ($20.09 per 100 nautical miles (190 km); $21.63 beginning 1 October 2014) for flying over the international waters where air traffic is controlled by the U.S., which includes sections of Atlantic & Arctic Oceans and much of the northern Pacific Ocean.[12] Countries that are not signatories of the IASTA charge overflight fees as well; among them, Russia, is known for charging high fees, especially on the transarctic routes between North America and Asia, which cross Siberia.[11] In 2008, Russia temporarily denied Lufthansa Cargo permission to overfly its airspace with cargo ostensibly due to "delayed payments for its flyover rights".[13] European airlines pay Russia €300 million a year for flyover permissions for its airlines.[13]

The second freedom allows technical stops without the embarking or disembarking of passengers or cargo.[6]:31 It is the right to stop in one country solely for refueling or other maintenance on the way to another country.[2]:146 Because of longer range of modern airliners, second freedom rights are comparatively rarely exercised by passenger carriers today, but they are widely used by air cargo carriers, and are more or less universal between countries.[11]

The most famous example of the second freedom is Shannon Airport, which was used as a stopping point for most North Atlantic flights until the 1960s. Anchorage was similarly used for flights between Western Europe and East Asia, bypassing Soviet airspace, until the 1980s. Anchorage is still used by some Chinese and Taiwanese airlines for flights to the U.S. and Toronto until the 2000s. Flights between Europe and South Africa often stopped at Ilha do Sal (Sal Island), off the coast of Senegal, due to many African nations refusing to allow South African flights to overfly their territory during the Apartheid regime. Gander, Newfoundland was also a frequent stopping point for airlines from the USSR and East Germany on the way to the Caribbean, Central America, Mexico and South America.

In contrast to transit rights, 'traffic rights' allow commercial international services between, through and in some cases within the countries that are parties to air services agreements or other treaties.[2]:146 While it was agreed that the third to fifth freedoms shall be negotiated between states, the International Air Transport Agreement (or "Five Freedoms Agreement") was also opened for signatures, encompassing the first five freedoms.[14]:108 The remaining four freedoms are made possible by some air services agreements but are not 'officially' recognized because they are not mentioned by the Chicago Convention.[14]:108

The third and fourth freedoms allow basic international service between two countries.[2]:146 Even when reciprocal third and fourth freedom rights are granted, air services agreements (e.g. the Bermuda Agreements) may still restrict many aspects of the traffic, such as the capacity of aircraft, the frequency of flights, the airlines permitted to fly and the airports permitted to be served.[2]:146–147 The third freedom is the right to carry passengers or cargo from one's own country to another.[6]:31 The right to carry passengers or cargo from another country to one's own is the fourth freedom.[6]:31 Third and fourth freedom rights are almost always granted simultaneously in bilateral agreements between countries.

Beyond rights allow the carriage of traffic between (and sometimes within) countries that are foreign to the airlines that operate them.[2]:146 Today, the most controversial of these are fifth freedom rights.[2]:146[14]:108–109[14]:112 Less controversial but still restricted at times, though relatively more common are sixth freedom rights.[2]:146[15]:94–95

Beyond rights also encompass international flights with a foreign intermediate stop where passengers may only embark and disembark at the intermediate point on the leg of the flight that serves the origin of an airline operating it.[2]:146 It also includes 'stopover' traffic where passengers may embark or disembark at an intermediate stop as part of an itinerary between the endpoints of a multi-leg flight or connecting flights.Note[2]:146 Some international flights stop at multiple points in a foreign country and passengers may sometimes make stopovers in a similar manner, but because the traffic being carried does not originate in the country where the flight takes place it is not cabotage but another form of beyond rights.[16]:110

The fifth freedom allows an airline to carry revenue traffic between foreign countries as a part of services connecting the airline's own country.[17] It is the right to carry passengers from one's own country to a second country, and from that country to a third country (and so on). The 'unofficial' seventh freedom is a variation of the fifth freedom, and allows international services wholly outside an airline's origin.[6]:31 An example of a fifth freedom traffic right is an Emirates flight in 2004 from Dubai to Brisbane, Australia and onward to Auckland, New Zealand, where tickets can be sold on any sector.[6]:34 Fifth freedom traffic rights are intended to enhance the economic viability of an airline's long haul routes, but tend to be viewed by local airlines and governments as potentially unfair competition.[18]:33–34 The negotiations for fifth freedom traffic rights can be lengthy, because in practice the approval of at least three different nations is required.Note[19]:131

Fifth freedom traffic rights were instrumental to the economic viability of long-haul flight until the early 1980s, when advances in technology and increased passenger volume enabled the operation of more non-stop flights.[6]:31–32 The excess capacity on multi-sector routes could be filled by picking up and dropping off passengers along the way.[18]:33 It was not uncommon for carriers to schedule stops in one or more foreign countries on the way to a flight's final destination. Fifth freedom flights were common between Europe and Africa, South America and the Far East.[6]:31–32 An example of a multi-sector flight in the mid-1980s was an Alitalia service from Rome to Tokyo via Athens, Delhi, Bangkok and Hong Kong.[6]:31–32 Such routings in Asia approximated the Silk Road[6]:31–32. Fifth freedom flights are still highly common in East Asia, particularly on routes serving Tokyo, Hong Kong and Bangkok. Between the latter two destinations, in 2004, service was provided by at least four airlines whose home base was not in either Hong Kong or Bangkok.[6]:32 The Singapore-Bangkok route has also constituted an important fifth freedom market. In the late 1990s, half of the seats available between the two cities were offered by airlines holding fifth freedom traffic rights.[14]:112 Other major markets served by fifth freedom flights can be found in Europe, South America, the Caribbean and the Tasman Sea.[6]:32–33, 36

Fifth freedom traffic rights are sought by airlines wishing to take up unserved or underserved routes, or by airlines whose flights already make technical stops at a location as allowed by the second freedom.[6]:32 Governments (e.g. Thailand) may sometimes encourage fifth freedom traffic as a way of promoting tourism, by increasing the number of seats available. In turn, though, there may be reactionary pressure to avoid liberalizing traffic rights too much in order to protect a flag carrier's commercial interests.[14]:110 By the 1990s, fifth freedom traffic rights stirred controversy in Asia because of loss-making services by airlines in the countries hosting them.[20]:16–19 Particularly in protest over US air carriers' service patterns in Asia, some nations have become less generous with regard to granting fifth freedom traffic rights, while sixth freedom traffic has grown in importance for Asian airlines.[14]:112

The Japan-United States bilateral air transport agreement of 1952 has been viewed as being particularly contentious, because unlimited fifth freedom traffic rights have been granted to designated US air carriers serving destinations in Far East Asia beyond Japan. For example, in the early 1990s, the Japanese government's refusal to permit flights on the New York City—Osaka—Sydney route led to protests by the US government and the airlines that applied to serve that route. The Japanese government countered that about 10% of the traffic on the Japan - Australia sector was third and fourth freedom traffic to and from the US, while the bilateral agreement specified that primary justification for unlimited fifth freedom traffic was to fill up aircraft carrying a majority of US-originated or US-destined traffic under third and fourth freedom rights. Japan had held many unused fifth freedom traffic rights beyond the USA. However, these were seen as being less valuable than the fifth freedom traffic rights enjoyed by US air carriers via Japan, because of the higher operating costs of Japanese airlines and geographical circumstances. Japan serves as a useful gateway to Asia for North American travelers. The US contended that Japan's favourable geographical location and its flag airlines' carriage of a sizeable volume of sixth freedom traffic via gateway cities in Japan helped to level the playing field. In 1995, the air transport agreement was updated by way of liberalizing Japanese carriers' access to US destinations, while placing selected restrictions on US air carriers.[20]:19–24

The unofficial sixth freedom combines the third and fourth freedoms and is the right to carry passengers or cargo from a second country to a third country by stopping in one's own country.[6]:31 It can also be characterized as a form of the fifth freedom with an intermediate stop in the operating airline's home market. This characterization is often invoked as protectionist policy as the traffic, like fifth freedom traffic, is secondary in nature to third and fourth freedom traffic.[18]:33–34 Consequently some nations seek to regulate sixth freedom traffic as though it were fifth freedom traffic.[19]:130 China is an example of a country that restricts sixth freedom traffic from third party countries. Specifically, it is difficult for airlines to obtain permission from China to serve the country via codeshare flights from intermediate countries.[21]

Because the nature of air services agreements is essentially a mercantilist negotiation that strives for an equitable exchange of traffic rights the outcome of a bilateral agreement may not be fully reciprocal but rather a reflection of the relative size and geographic position of two markets, especially in the case of a large country negotiating with a much smaller one.[19]:129 In exchange for a smaller state granting fifth freedom rights to a larger country, the smaller country may be able to intermediate sixth freedom traffic to onward destinations from the larger country.[19]:129–130

However, strictly speaking, common connection flights (e.g. New York to Paris via London on British Airways) do not need sixth freedom. Only airlines flying between two foreign countries via home country on a single flight number requires sixth freedom. One known example is flight SU581 of Aeroflot, flying from London to Tokyo via Moscow.

The unofficial seventh freedom is a variation of the fifth freedom. It is the right to carry passengers or cargo between two foreign countries without any continuing service to one's own country.[6]:31

On 2 October 2007, the United Kingdom and Singapore signed an agreement that allowed unlimited seventh freedom rights from 30 March 2008, along with a full exchange of other freedoms of the air.

Cabotage is the transport of goods or passengers between two points in the same country by a vessel or an aircraft registered in another country. Originally a shipping term, cabotage now covers aviation, railways, and road transport. It is "trade or navigation in coastal waters, or, the exclusive right of a country to operate the air traffic within its territory".[22]

The unofficial eighth freedom is the right to carry passengers or cargo between two or more points in one foreign country and is also known as cabotage.[6]:31 It is extremely rare outside Europe. The main example is the European Union, which has granted such rights to all its member states. Other examples include the Single Aviation Market (SAM) established between Australia and New Zealand in 1996; the 2001 Protocol to the Multilateral Agreement on the Liberalization of International Air Transportation (MALIAT) between Brunei, Chile, New Zealand and Singapore; United Airlines "island hopper" route, from Guam to Honolulu, able to transport passengers within the Federated States of Micronesia and the Marshall Islands, although the countries involved are closely associated with the United States, the flag of United. Such rights have usually granted only where the domestic air network is very underdeveloped. A notable instance was Pan Am's authority to fly between Frankfurt and West Berlin from the 1950s to 1980s, although political circumstances, not the state of the domestic air network, dictated this - only airlines of the Allied Powers of France, the United Kingdom and the United States had the right to land aircraft in West Berlin.[citation needed][23] In 2005, the United Kingdom and New Zealand concluded an agreement granting unlimited cabotage rights.[24] Given the distance between the two countries, the agreement can be seen as reflecting a political principle rather than an expectation that these rights will be taken up in the near future. New Zealand had exchanged eighth-freedom rights with Ireland in 1999.[25]

The right to carry passengers or cargo within a foreign country without continuing service to or from one's own country,[26] sometimes known as "stand alone cabotage." It differs from the aviation definition of "true cabotage," in that it does not directly relate to one's own country.

^A Even when fifth freedom rights are in place further restrictions on capacity and frequency may result in an airline only using the rights for stopover traffic or not being able to carry any traffic at all.[19]:131

^B Because of this three types of fifth freedom traffic can be distinguished: 'intermediate point', where the right is granted from a third country to a second one between the third and the grantee; 'beyond-point', where the country giving the right allows traffic to continue to third countries; and 'behind-point' or 'anterior-point' where the grantor allows service between other destinations outside of the grantee's country of origin.[14]:108[19]:131